Democrats Need a New Supreme Court Nomination Playbook

The old Democratic playbook on Republican Supreme Court nominations will no longer work for the Gorsuch confirmation hearings. Democrats used to spend much of their time talking about the importance of precedent and demanding that nominees follow it. The point, of course, was to protect one particular precedent above all—Roe v. Wade—and more generally keep alive the precedents favoring liberalism that were minted in the Warren and to some extent Burger  and even Rehnquist eras.

But this approach no longer fits the times. One reason is multiplication of precedents that the Democratic base wants overruled. Citizens United is the best example. Hillary Clinton was even going to make its overruling a litmus test of her judicial appointments. But there are others too. Senator Schumer has already complained in the context of this nomination about Shelby County v Holder, which found a portion of the Voting Rights Act unconstitutional. And few cases enraged the left like Hobby Lobby, which held that closely held corporation had religious freedom rights under the Religious Freedom Restoration Act.  More generally, given that liberals have not been a majority on Court in several generations, there is growing body of precedent they do not like.

And much of the Democratic party too is changing to become more openly radical. Thus, its base is not satisfied with simply standing on past precedent while hoping that the Court will drift their way. It wants the Court to be a more active partner in progressive social change.

This creates a dilemma for Democrats. The very important advantage of prioritizing precedent is that that appears to make them adherents of following the law, where the law is defined as the past case law of the Supreme Court.

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Prospects for Constitutionalism

The Assembly Room in Independence Hall

What are the prospects for constitutionalism and the rule of law under President Donald Trump? 

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Principle or Policy Preferences?

stahl

What to make of Donald Trump’s interview with CBS’s Lesley Stahl last week?

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The Original Understanding of Substantive Due Process

Justice Collage

The modern conservative legal movement grew up in response to the Warren Court’s activism in the 1960s. In opposing the decisions of Justice Brennan and the rest, conservatives made use of the same arguments that liberals had used during the New Deal, when the Supreme Court had a conservative majority resistant to the Roosevelt program. In essence, the conservatives during the Warren years called liberals hypocrites for not deferring to the legislature, since deference was the claimed reason for the 1937 overturning of Lochner v. New York (1905). When the conservatives finally did get a majority on the Court in the 1980s, it was under a Republican president, and deference to the Reagan administration made a lot of sense for conservatives.

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Substantive Due Process Is Ready for Takeoff

Clinton appointments to the Supreme Court would endanger constitutional governance in a variety of ways, but one of the most substantial is the creation of rights nowhere to be found in the actual Constitution.  Sadly, the stage has been set for great expansion of such rights by Justice Anthony Kennedy’s Obergefell opinion. It, of course, constitutionalized same-sex marriage.  More importantly for the future, it destroyed the doctrinal restraints on substantive due process—the Court’s minting house for new rights.

Previously the Supreme Court had sharply restricted the rights that could be found in substantive due process. In Washington v. Glucksberg, the Court rejected the argument that the  right to assisted suicide could be found in the Constitution.  The Court read its precedents to require strict objective criteria for the identification of a specific fundamental right: it must be “deeply rooted in this Nation’s history and tradition.” By that strict standard, the right to assisted suicide was a non-starter,  because laws against the practice had long existed.

But same-sex marriage could hardly be termed a right “deeply rooted in the Nation’s history and tradition” either.  In effect, Kennedy said so much the worse for Glucksberg. One reason he gave is that the right to abortion declared in Roe v. Wade itself had  itself not met the Glucksberg test. But the right of  abortion had persisted in Planned Parenthood v. Casey not because Roe was substantively correct, but only because it was a precedent. Thus, Roe hardly should be taken as generative model for substantive due process.

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Roe’s Progeny: The Abortion Extremes

roe

The kind of extremism on display on the Planned Parenthood videotapes and in the reflexive closing of ranks around the group—whose own leadership has done more to disavow its grotesqueries, or at least the depictions of them, than have its political supporters—is the product of Roe v. Wade, but not for the reasons commonly supposed.

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The Incautious Justice Kennedy

While many have celebrated the result in Obergefell v. Hodges, fewer have praised the craftsmanship of Justice Anthony Kennedy’s opinion. That is as it should be because the opinion is longer on sentiment and empathy than legal analysis. And yet it is now as much a part of the United States Reporter as the most well-reasoned judgment. Thus, it is worth looking at its doctrinal implications, none of which are happy.

First, Kennedy consciously removes the historical constraints on the Court’s ability to declare new fundamental rights.  Washington v. Glucksberg (1997), the most important modern substantive due process case, required fundamental rights to be deeply rooted in the history and tradition of America. Whatever else can be said about it, same-sex marriage does not begin to meet that test. Kennedy says correctly that some other substantive due process cases did not meet that test either (Roe comes obviously to mind). While Kennedy does not quite say that he is overruling Glucksberg altogether, its relevance has been gravely weakened. Justices seem free to look to their views on the nature of justice rather than history to discern new fundamental rights.

While some libertarians in the past have been enthusiastic about this development, it is unlikely the Court will use this power to pursue economic liberties. I think this development is likelier to revive claims that some other social rights, like the right to assisted suicide, are also constitutional ones.

Kennedy also gestured to the equal protection clause in his decision.

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Blowback Conservatism

I’ve been traveling today, driving from Amherst back to Washington, and so I’m catching up with some of the comments drawn by the piece on Commencements and the bizarre implication that springs from the judgment of the Court in Lee v. Weisman. I want to thank Carl Scott for his stirring words on Natural Rights & the Right to Choose. But on this matter of whether I would try to make use of the lever revealed in this case, he has me wrong on one critical point: I’m always in favor of the conservatives making use of the ‘principles’ laid down by the Left in order to show how those principles would work quite forcefully against them. The Left persistently fails to live by the rules or principles it lays down for others, and so the only way of making them back away is to use the precedents they set in ways that they’ll find quite jarring.

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41 Years Later: WhyRoe Said What It Did

Few, if any, constitutional scholars think Justice Harry Blackmun’s majority opinion in Roe v. Wade (1973) was flawless. When Jack Balkin invited eleven leading scholars to rewrite the decision for his 2007 book What Roe v. Wade Should Have Said, each of the contributors departed in some way from the Court’s original approach. The one thing scholars across the ideological spectrum can agree on is that the Court should have said something else.

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Slavery, Abortion, and the Politics of Constitutional Meaning

Slavery, Abortion, and the Politics of Constitutional Meaning

This Liberty Law Talk is with political scientist Justin Dyer on his latest book, Slavery, Abortion, and the Politics of Constitutional Meaning (Cambridge University Press, 2013). In debates over the legality of abortion common opinion has focused on the connections between the legal treatment of slavery in the nineteenth century and the contemporary status of abortion as a fundamental right. Dyer takes this debate as his starting point but goes much deeper by showing the layers of constitutional, political, and philosophical meaning linking slavery and abortion in the American experience. This conversation covers the ground of the Dred Scott opinion,…

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